Calhoun_CrimProI_Answer_SP11 - \‘ ID CrimProl_LS...

This preview
has intentionally blurred sections.
Sign up to view the full version.

This preview
has intentionally blurred sections.
Sign up to view the full version.

This preview
has intentionally blurred sections.
Sign up to view the full version.

This preview
has intentionally blurred sections.
Sign up to view the full version.

This preview
has intentionally blurred sections.
Sign up to view the full version.

This is the end of the preview.
Sign up
to access the rest of the document.

Unformatted text preview: \‘ ID: CrimProl_LS 1_Calhoun_Fina1_2 0 1131. Calhoun _________________—______________———————————— ID: (Exam Number) Exam Name: CrimPro1_LS1_Calhoun_Final__2011SL
Instructor: Calhoun Grade: ____________—______________—_____—__————— Page 1 0'1 ID: CrimProl L81 Calhoun Final 2011SL Calhoun
._ - _ _ 2) ESSAY QUESTION Cell Phone Lo 5 The ﬁrst issue is whether the police could lawfully look at the cell phone logs tracking
Dan Defendant's (D) cell phone. The 4th amendment protects against unreasonable
searches and seizures. A search occurs when someone has a subjective expectation
of privacy in something and society would think that this expectation of privacy is
objectively reasonable (Katz). Here D may have had a subjective expectation of privacy
in his cell phone calls because people generally think that this information is relatively
safe from observation by the public. especially now that we all have our own personal
cell phones. Objectively. however. this is not a reasonable expectation of privacy
because D's already shares his cell phone calls with a 3rd party - the phone company -
so it is no longer private information. Since the ofﬁcers weren't listening to his actual
phone calls, they were just looking at the log of who he called, when, and from where,
this is the information that he shares with the phone company so he does not have a
reasonable expectation of privacy in it. This includes both the log of calls and the location that the calls were made from since the facts say that the phone company can locate the closest tower and also that the phone company ept the lo s. Therefore, this
/ earch san seizures, it
—P was not a search. Since the 4th amendment only pro ct was lawful for the police to obtain this information. j Page 1 of a (Question 2 continued) ID: CrimProl_LS l_Calhoun_Final_2 0 llSL Calhoun —________—__________________—.————-—————— Entering Home Ofﬁcers can enter a suspect‘s home to execute an arrest warrant against him. Ofﬁcers
can also enter a home when they have freely-given consent to enter. D's 10-year-old
did not give them consent according to the facts; plus, children cannot give consent to
search their parent's home, so he couldn't give consent even if he wanted to. Since neither consent nor an arrest warrant exists here, the ofﬁcers unlawfully entered D's home. MED An arrest is reasonable is the ofﬁcers have a probable cause and an arrest warrant or
there are exigent circumstances. Probale cause (PC) for an arrest is a fair or real
probability that a crime has been committed and that this person committed is. PC is
determined by looking at the totality of the circumstances, including the reliability or
veracity of any informants, the basis of the informant‘s information. police corroboration.
and any other circumstances that could contribute to a ﬁnding of PC. Here the ofﬁcers
are using the fact that D's cell phone was used within 100 feet of 7 of the robberies in
the previous 2 months. it is uncertain whether this would be enough information for
probable cause. Depending on how spread out the robberies were and how much of a coincidence it would be that his cell phone was near the robberies. the court could
determine whether or not this information alone is enough for probable cause. For example, if the robberies all occurred within a 2-block radius and D lived in the middle of that, then this would not be enough for PC. the facts do not give enough information Page 2 of 8 {Question 2 continued) ID: CrimProl_LS 1_Ca1houn_Final_2 O 1 ISL Calhoun for this. but this doesn't matter because it is still an invalid arrest based on the other
prong: arrest warrant or exigent circumstances. The facts say no warrant exists.
Additionally. exigent circumstances, which are some sort of emergency situation where
time is critical and so the police cannot obtain a warrant, do not exist either. There is
nothing in the facts that says that the ofﬁcers had to arrest him at that moment. such as ereforé\ nt or exigent a danger to the public or the risk of imminent destruction of evidence. because there is possibly no probable cause, and deﬁnitely no arr circumstances, this arrest is invalid. Incident to a lawful arrest, ofﬁcers can search the arrestee's person and the area within
his immediate control for the purpose of ofﬁcer safety and evidence preservation. The
area within the arrestee's immediate control is the area in which there is a reasonable
possibility that he can reach to obtain a weapon or destroy evidence. If the ofﬁcers had
lawfully arrested D. then they may have been able to search the drawer because it was
in the table at which he was sitting so this was likely within his immediate control.
However, since this was not a lawful arrest, then this was not a lawful search incident to arrest. Also incident to a lawful arrest, ofﬁcers can do a cursory sweep of the area immediately ___—___—________________.——————-—-———————-—— Page 3 of 8 (Question 2 continued) ID: CrimProl_LS 1_Calhoun_Fina1_2 0 1 ISL Calhoun adjoining the place of the arrest from which an attack could be immediately launched by
other suspects. Such a saerch can only extend to where people could be hiding.
Therefore, since this is again. not a lawful arrest. and people can't hide in drawers, then
this is also not a lawful cursory sweep. Furthermore, this is not a consent search, as discussed above. Therefore. the search of the drawer is unlawful. When evidence is found in violation of the 4th amendment, as the jew lry was ound in
this case because it was an unconstitutional search, then it can be excluded under the Exclusionary Rule. Therefore. this evidence will be excluded pursuant to the ER. Computer search The issue here is whether the ofﬁcers could lawfully search D's computer. Pursuant to
the Katz rule above, D likely had a subjective expectation of privacy in his computer and
his email. Even though someone could argue that his computer was turned on and
opened to email. so he may have been exposing his email to the public and therefore
ruined any subjective expectation of privacy, his computer was in his home and so he
probably still thought that this information was private. It is unlikely that society would
think this was an objective expectation of privacy. however. because like the phone
logs. emails are shared with a 3rd party - the email provider and possibly even the internet provider. Google and all other email providers make users sign waivers before obtaining an email account that the emails that users send and receive will be stored on the provider's servers, thus making them available to the provider. j 3 like the / . (Question 2 continued) ID: CrimProl_LS1_Ca1houn_Fina1_20 1151. Calhoun was not a search because one doesn't have any objective expectation of privacy in his email since they are shared with a 3rd party. If the court found that this was a search. then the ofﬁcers will likely argue that because the emails were open already and in plain view, then they could seize them. If ofﬁcers
are lawfully in a place when they see somethign that has an obvious connection to
criminality, then they can seize it. Here, however. the ofﬁcers were not lawfully in the
house, plus the emails were not in plain view- the facts say that they had to scroll through the email log to ﬁnd the email to e—Bay. Therefore. if this is a search becau e D had a reasonable expectation of privacy in his email, then the ofﬁcers cannot search
the emails because they do not have a search warrant and they cannot seize’the‘emails\ /
because they were not in plain view (an exception to the search warr‘Ant/reduirement).
!
r. Courts have held hat a search warrant is required to search a comp / Conversation in the car— "Maybe I did it" \ / \ w“ ,., The 5th amendment protects against compelled self-incrimination. The court
interpretted this in Miranda and created the 4 Miranda rights that must be read to
anyone who is in custody before he can be interrogated. The purpose is to mitigate the
inherently coercive nature of custodial interrogation. Someone is in custody when he is
formally arrested or when his freedom of movement has been restricted to such a
degree that a reaosnable person would associate it with formal arrest. The facts say
that D was arrested. so he was in custody in this case and so before he could be interrogated, the ofﬁcers needed to give him his Miranda rights and then obtain a waiver Page 5 of 8 (Question 2 continued) ID: CrimPro 1_LS 1_Ca1houn_Final_2 O 11$L Calhoun of these rights. The ofﬁcers correctly gave him his rights, so the question is whether 0
C they started interrogating him before receiving a waiver fo the guously so that %cer ° rights. Silence alone is not a waiver of one's A waiver of Miranda rights must be given una
would understand that he was waiving Miranda rights. so when D said ing after receiving his rights. he did not waive them _,_’ so he could not be interrogated. Interrogation is either direct questions or the functional
L. .F~/-"““\
equivalent- words or actions by the police that are reasonably likely to elicit an
incriminating response. "We dont‘ need his statement...". while not a direct question.
probably isn't enough to foreseeably elicit an incriminating response from D (the
ofﬁcer's subjective intent is not the standard, it is just foreseeability). The statement is
preying on any susceptibilities that D has or likely to invoke some sort of emotional
response, so most likely this is not the equivalent of a direct question. Since this is not interrogation. D's Miranda rights were not violated and so when he said "Maybe I did that one...". this was a voluntary statement and so it is admissible. D will argue that this is a fruit of the poisonous tree violation (FPT) because the ofﬁcers
did not have probable cause to arrest him (discussed above). When evidence is
derived from the exploitation of illegally obtained evidence. it is tainted and suppressed.
Here. D could argue that his statement "Maybe I did that one..." was the ofﬁcers
exploiting their earlier illegal arrest by arresting him without probable cause. getting him
in the car, and then getting him to confess. Evidence that is tainted by illegal activity
will only be admissible is there is an indepedent source for the evidence, if it would have inevitably been discovered, or if the casual connection is broken such that the _____—________——————-—————— Page 6 ol 8 (Question 2 continued) ID : CrimProl_LS 1_Ca1houn_Final_2 0 llSL Calhoun
______________________.__________—.____— evidence is attenuated from the illegal arrest. Here there was no independent source
for the statement and there is no evidence that they would have gotten his statement
inevitably— they didnt' even have probable cause to arrest him. Therefore, teh court
must weigh the Brown factors to determine if the statement was attenuated from the
illegal arrest, which include the time between the arrest and the statement, intervening
circumstances, and the flagrancy of the police misconduct. Here the time was short,
there weren't any intervening circumstances. and the police just barged into the house
without PC or a warrant. so this statement could be suppressed under FPT. If the court found above that there was PC, then the arrest would be illegal solely due a lack of a warrant. An exception to FPT is for Payton violations (warrantiess arrests in someone's home). This exception says that if someone is arrested in his home witho a warrant, then his statements int eh home are suppressed but any statements e
outside are not suppressed. If the police did have PC from the phone records then t exception would apply and this statement would be admissible as an excepti h to the F PT doctrine. After making the statement "Maybe I did that one..." the police clearly started \ interrogating D because they asked him a direct question. However, at that point h & tM muously in ed his Miranda rights by saying he needed to call his attorney,
W they were required to stop questioning immedaitely. The facts show taht they did this. Informant Page 7 of 8 (Question 2 continued) ID: CrimPro 1_LS 1_Ca1houn_Final_2 0 llSL Calhoun ______________________—___—__.___———————— 6th amendment guarantees a right to counsel. This right attaches when formal
proceedings against a defendant begin, such as in this case when D was indicted for
armed robbery. Once the right attaches, a defendant is entitled to an attorney during all
critical stages of the proceedings. Because the 6th amendment is protecting against
the police deliberately eliciting statements from the suspect. one of these critical stages
is during interrogation. Therefore, since D's right to an attorney had attached. during interrogation he was entitled to have an attorney present. Interrogation occurs whenever the police or a police agent is deliberately trying to elicit
a response, so this includes undercover informants. Here, Judas (J) was an
undercover informant, so he was an agent of the police. and he deliberately tried to
elicit responses from D in his jail cell. Therefore. D was entitled to an attorney during this exchange and since one was not present. his statements made to J are inadmissible. The prosecution may argue that J was not deliberately trying to elicit a response and so
there was no interrogation for which D's attorney should have been present. he was just
asking sort of mundane questions. However, the court should ﬁnd "How's it look?" as a statement that is designed to elicit an incriminating chause this is exactly the sort of question where D would weigh in on whether or not he th ght he would be guilty or innocent. Therefore, since his attorn 'was no present. ese statements are
inadmissible. (/ Page 8 of 8 CrimProl__LS1_Ca1houn_Final_201151. Calhoun ID:
__________————-—~—— END OF EXAM :'
I
l
5
1
1 ________________.__.__————~—- Page 1 of o ...
View
Full Document

What students are saying

As a current student on this bumpy collegiate pathway, I stumbled upon Course Hero, where I can find study resources for nearly all my courses, get online help from tutors 24/7, and even share my old projects, papers, and lecture notes with other students.

Kiran
Temple University Fox School of Business ‘17, Course Hero Intern

I cannot even describe how much Course Hero helped me this summer. It’s truly become something I can always rely on and help me. In the end, I was not only able to survive summer classes, but I was able to thrive thanks to Course Hero.

Dana
University of Pennsylvania ‘17, Course Hero Intern

The ability to access any university’s resources through Course Hero proved invaluable in my case. I was behind on Tulane coursework and actually used UCLA’s materials to help me move forward and get everything together on time.